Full Judgment Text
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CASE NO.:
Appeal (civil) 443 of 2004
PETITIONER:
U.P. State Bridge Corporation Ltd. & Ors.
RESPONDENT:
U.P. Rajya Setu Nigam S.Karamchari Sangh
DATE OF JUDGMENT: 13/02/2004
BENCH:
Ruma Pal & B.P. Singh.
JUDGMENT:
J U D G M E N T
with
Civil Appeal No 442/2004
RUMA PAL, J.
The appellant is a Government company
within the meaning of Section 617 of the Companies Act. It
carries on construction activities at various sites throughout
the country and abroad. The respondent-Union represents
the cause of 168 muster roll employees. The respondents
were working at the bridge construction unit of the appellant
at Kanpur in various capacities. The terms and conditions of
employees of the appellant are governed by Standing Orders
Certified under the U.P. Industrial Employment (Standing
Orders) Act, 1946, clause L- 2.12 of which reads:
"Any workman who remains absent from
duty without leave or in excess of the
period of leave originally sanctioned or
subsequently extended for more than 10
consecutive days, shall be deemed to
have left the services of the corporation
on his own accord, without notice,
thereby terminating his contract of
service with the corporation and his
name will accordingly be struck of the
rolls."
From 12th October 1995 the respondents-workmen did
not attend their jobs. On 18th October 1995 the appellant
issued an order which is quoted:
"Some of the workmen working at
Betwa Bridge, Arichghat, Jhansi are
absenting from duty since 12.10.1995.
Direction for smooth functioning of the
work in the interest of the Corporation
has already been given vide this Office
Notice No. 1102/1E/126 dated
16.10.1995 to such workmen.
In the light of the aforesaid, it is made
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clear that such of the workmen who do
not present themselves for duty and do
not perform work or discharge their
duty, then in accordance with the
provision contained in Clause L-2.12 of
the Certified Standing Order of the U.P.
State Bridge Corporation Ltd. [such of
the workmen, who are continuously
absent for more than 10 days, in
respect of them, it shall be presumed
that they have left the services of the
Corporation without any notice and
thus, their contract of service with the
Corporation has come to an end and
accordingly, their names from the
muster roll shall be removed] action
shall be taken in the interest of the
Corporation."
On 22nd December 1995 as amended on 28th
December 1995 a similar notice was published in a
Hindi newspaper which also stated that if the workmen
whose names were appended to the notice did not
report for duty within a period of three days from the
date of the publication of the notice, it would be
presumed that they had abandoned their services with
the Corporation without notice and their contract of
service would come to an end and their names would
be removed from the muster roll. According to the
appellant despite the repeated notices the workmen
continued to absent themselves and ultimately on
19th January 1996 an order was issued putting an end
to the services of 168 workmen on the presumption
that they had abandoned their services with the
Corporation on their own.
On 9th May 1996, one of the workmen whose
services were so terminated, namely Anand Prakash
filed a writ petition in the High Court before the
Lucknow Bench challenging the order of termination.
The writ petition was dismissed on the ground that the
workman could raise an industrial dispute if he so
desired. A second writ petition was filed by the
respondent-Union in the High Court at Allahabad. This
writ petition was allowed by orders which now are the
subject matter of challenge before us.
The learned Single Judge rejected the preliminary
objections raised by the appellant that the writ petition was
not maintainable, inter-alia, on the grounds that the
Corporation was not a State within the meaning of Article 12
and that an un-registered Union did not have the locus to
represent the workmen’s cause. It is not necessary to
consider the reasoning of the learned Single Judge as
neither of these points were raised before us by the
appellant. On the question of the alternative remedy which
was available to the workmen under the Industrial Disputes
Act, the learned Single Judge was of the view that the case
did not involve any investigation into nor determination of
disputed questions of fact and that since the writ petition
was moved in 1995 and a long time had lapsed the Court
was justified in exercising its discretion under Article 226 to
entertain and dispose of the dispute. It was also held that
although in Anand Prakash’s case, the writ petition raising
the same issue had been dismissed, the second writ petition
challenging the same order was not barred by the principles
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of res-judicata particularly when no decision had been taken
by the Court while dismissing Anand Prakash’s writ
petition. On the other hand although the order in Anand
Prakash should not be affected in these proceedings,
nevertheless, the Learned Judge held, since the decision of
the High Court in the second writ petition would be binding,
it would be an "infructuous exercise and mere formality" if
Anand Prakash were driven to a Labour Court causing him
to "suffer unnecessary agony".
On the merits, the learned Single Judge came to the
conclusion that the word "absence" did not by itself mean
"abandonment of service" and when an employee went on
strike it was not the intention to abandon service. It was
said that "Resorting to strike is neither misuse of leave nor
over staying of leave. Standing order does not provide for
any provision as to how the question of strike is to be dealt
with." It was further said that the strike was not illegal as
no notice was required to be given to the respondent under
Section 22 of the Industrial Disputes Act, 1947. It was also
held that in any event- whether a strike was illegal or legal
- it did not amount to abandonment of service justifying
action under L-2.12. At the highest, it would be an action of
misconduct for which a punishment was provided under the
Standing Orders after an inquiry. As there was admittedly
no inquiry before the services of the workmen were
terminated, therefore, the impugned order of termination
was also held to have been passed in violation of principles
of natural justice. Finally, it was held that the order was
also bad because it did not specify the period during which
the workmen were supposed to be absent and, therefore,
the order was not an order within the meaning of clause L-
2.12 and could not be sustained. The order terminating
their services was accordingly quashed and it was directed
that the workmen including the said Anand Prakash, would
be deemed to be in service and "be treated as on continuous
service with all notional service benefits, except however,
that they would not be entitled to any payment of arrears
for the period during which they did not work actually.
Except that each of them would be entitled to a
compensation for the whole period assessed at Rs.5000/-
each".
The appellants’ appeal was rejected by the Division
Bench. The Division Bench has given brief reasons for
upholding the decision of the learned Single Judge. In
addition, note was taken of the appellant’s submission that
the project being completed, there was no question of
appointing the respondents in any other project. This
submission was however rejected on the ground that there
was no specific pleading to this effect and no details had
been given of the project nor of the employees engaged
therein nor were the appointment letters of the respondents
produced.
An interim order granted by this Court on the special
leave petitions filed by the appellants directing maintenance
of status quo has been continuing since 3rd March 2003.
The appellants have submitted that the High Court
should not have entertained the writ petition at all not only
because disputed questions of fact were involved but also
because the High Court had acted contrary to its previous
decision in Anand Prakash’s case. It was argued that the
reasons given by the High Court for entertaining the writ
petition by exercising discretion under Article 226 were
wrong and that the matter should have been left for decision
by the fora provided under the Industrial Dispute Act, 1947.
On the merits, it is submitted that clause L-2.12 of the
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Standing Orders had been properly invoked because the
workmen had in fact unauthorisedly absented themselves
without any reason. According to the appellants, it could not
also be said that the workmen were on strike because they
had not given any notice of strike as was mandatorily
required under the U.P. Industrial Act, 1947.
Learned counsel appearing on behalf of the
respondent-Union contended that the notice published in
the newspaper was invalid as it did not comply with clause
L-2.12 of the Standing Orders. It is also submitted that on
the basis of the decisions of this Court reported in Express
Newspapers (P) Ltd. V. Michael Mark and Another
1963 (3) SCR 405 and G.T. Lad and Others V. Chemical
and Fibres of India Ltd. 1979 (1) SCC 590 that even if
the strike was illegal it could not be deemed to be an
abandonment of services. It is stated that U.P. Industrial
Dispute Act (UPIDA) specifically provided for punishment for
an employee going on an illegal strike. This was on the
basis that the workmen continued in duty and that action
could be taken in the case of such abstention from work
against the workman but only after holding a proper inquiry.
On the issue whether the High Court should have
entertained the writ petition, it is submitted that the
respondent should not be relegated to its remedies under
the UPIDA as the matter had been pending before the High
Court for several years. It is further submitted that the
appellant was a State within the meaning of Article 12 of the
Constitution and was answerable to Court for any arbitrary
action. The Certified Standing Orders, according to the
respondent, had statutory force and therefore Article 226
was properly invoked.
We are of the firm opinion that the High Court erred in
entertaining the writ petition of the respondent-Union at all.
The dispute was an industrial dispute both within the
meaning of the Industrial Disputes Act, 1947 as well the
UPIDA, 1947. The rights and obligations sought to be
enforced by the respondent-Union in the writ petition are
those created by the Industrial Disputes Act. In The
Premier Automobiles Ltd. V. Kemlekar Shantaram
Wadke 1976 (1) SCC 496, it was held that when the
dispute relates to the enforcement of a right or an obligation
created under the Act, then the only remedy available to the
claimant is to get adjudication under the Act. This was
because the Industrial Disputes Act was made to provide
"\005 a speedy, inexpensive and effective forum for resolution
of disputes arising between workmen and their employers.
The idea has been to ensure that the workmen do not get
caught in the labyrinth of civil courts with their layers upon
layers of appeals and revisions and the elaborate procedural
laws, which the workmen can ill afford. The procedure
followed by civil courts, it was thought, would not facilitate a
prompt and effective disposal of these disputes. As against
this, the courts and tribunals created by the Industrial
Disputes Act are not shackled by these procedural laws nor
is their award subject to any appeals or revisions. Because
of their informality, the workmen and their representatives
can themselves prosecute or defend their cases. These
forums are empowered to grant such relief as they think just
and appropriate. They can even substitute the punishment
in many cases. They can make and re-make the contracts,
settlement, wage structures and what not. Their awards are
no doubt amenable to jurisdiction of the High Court under
Article 226 as also to the jurisdiction of this Court under
Article 32, but they are extraordinary remedies subject to
several self-imposed constraints. It is, therefore, always in
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the interest of the workmen that disputes concerning them
are adjudicated in the forums created by the Act and not in
a civil court. That is the entire policy underlying the vast
array of enactments concerning workmen. This legislative
policy and intendment should necessarily weigh with the
courts in interpreting these enactments and the disputes
arising under them".
Although these observations were made in the context
of the jurisdiction of the Civil Court to entertain the
proceedings relating to an industrial dispute and may not be
read as a limitation on the Court’s powers under Article 226,
nevertheless it would need a very strong case indeed for
the High Court to deviate from the principle that where a
specific remedy is given by the statute, the person who
insists upon such remedy can avail of the process as
provided in that statute and in no other manner.
There is another aspect of the matter. Certified
Standing Orders have been held to constitute statutory
terms and conditions of service - D.K. Yadav V. J.M.A
Industries 1993 (3) SCC 259. Although this statement of
the law was doubted in Rajasthan State Road Transport
Corporation and Another V. Krishna Kant and Others
1995 (5) SCC 75, it was not deviated from. It was however
made clear that Certified Standing Orders do not constitute
’Statutory Provisions’ in the sense that dismissal or removal
of an employee in contravention of the Certified Standing
Orders would be a contravention of statutory provisions
enabling the workman to file a writ petition for their
enforcement. This is what was said by this Court in
Rajasthan Transport Corporation (supra):
"Indeed, if it is held that certified
Standing Orders constitute statutory
provisions or have statutory force, a
writ petition would also lie for their
enforcement just as in the case of
violation of the Rules made under the
proviso to Article 309 of the
Constitution. Neither a suit would be
necessary nor a reference under
Industrial Disputes Act. We do not think
the certified Standing Orders can be
elevated to that status. It is one thing
to say that they are statutorily imposed
conditions of service and an altogether
different thing to say that they
constitute statutory provisions
themselves."
Finally, it is an established practice that the Court
exercising extra-ordinary jurisdiction under Article 226
should have refused to do so where there are disputed
questions of fact. In the present case, the nature of the
employment of the workmen was in dispute. According to
the appellant, the workmen had been appointed in
connection with a particular project and there was no
question of absorbing them or their continuing in service
once the project was completed. Admittedly, when the
matter was pending before the High Court, there were 29
such projects under execution or awarded. According to the
respondent-workmen, they were appointed as regular
employees and they cited orders by which some of them
were transferred to various projects at various places. In
answer to this the appellants’ said that although the
appellant corporation tried to accommodate as many daily
wagers as they could in any new project, they were always
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under compulsion to engage local people of the locality
where work was awarded. There was as such no question of
transfer of any workman from one project to another. This
was an issue which should have been resolved on the basis
of evidence led. The Division Bench erred in rejecting the
appellants submission summarily as also in placing the onus
on the appellant to produce the appointment letters of the
respondent-workmen.
There was also a dispute as to the nature of the
absence of the respondent-workmen. Correspondence said
to have been exchanged between the parties with regard to
the demands raised by the respondent-Union has been
relied upon by the respondent in support of the submission
that the absence was really on account of a strike. It is also
submitted that the correspondence indicated that notice of
the strike had been given. To counter the statement made
in the writ petition by the respondent that the workmen
were on strike, the appellants had said that no notice of
strike had been given and, therefore, the strike, if any, was
illegal. Significantly, the High Court has not relied upon
the correspondence nor has it come to any decision on
the question whether the strike was illegal or legal. In fact
the High Court has proceeded on the basis that it was the
accepted case that there was no notice given by the
workmen that they were on strike. It cannot, therefore, be
said, without more, that the absence of the respondent-
workmen from work was because they were on strike.
The High Court incorrectly applied the provisions of
Section 22 of the Industrial Disputes Act, 1947 to hold that
no notice of strike was necessary. It is conceded by the
respondent that the operative Act was the UPIDA which
differs materially, in this connection, with the Industrial
Disputes Act. Under Section 22 of the Industrial Disputes
Act, a notice of strike is required to be given, as held by the
High Court, only in the case of any public utility service and
the appellant corporation is not a public utility service.
However, under Section 65 of the UPIDA the notice of strike
is required to be given in respect of an industrial
establishment. It is not argued on behalf of the respondent
that the appellant-Corporation is not an industrial
establishment. Whatever the legal consequences of not
giving of such notice may be, it cannot be said in the
circumstances that the employees were admittedly on strike
as a matter of fact.
The only reason given by the High Court to finally
dispose of the issues in its writ jurisdiction which appears to
be sustainable, is the factor of delay, on the part of the High
Court in disposing of the dispute. Doubtless the issue of
alternative remedy should be raised and decided at the
earliest opportunity so that a litigant is not prejudiced by the
action of the Court since the objection is one in the nature of
a demurer. Nevertheless even when there has been such a
delay where the issue raised requires the resolution of
factual controversies, the High Court should not, even when
there is a delay, short-circuit the process for effectively
determining the facts. Indeed the factual controversies
which have arisen in this case remain unresolved. They
must be resolved in a manner which is just and fair to both
the parties. The High Court was not the appropriate forum
for the enforcement of the right and the learned Single
Judge in Anand Prakash’s case had correctly refused to
entertain the writ petition for such relief.
Apart from this, there is an additional reason why the
judgment of the High Court cannot be sustained on the
ground of alternative remedy. When it was drawn to the
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attention of the High Court that a previous writ petition
raising the same issue had been dismissed on the ground of
the existence of an adequate alternative remedy, the High
Court should not have continued to dispose of the matter
itself under Article 226 and in effect set aside the decision in
the previous writ petition.
It was argued before us by the respondent-Union that
the notice issued by the appellant-Corporation to the
workmen to rejoin duties did not sufficiently comply with
the principles of natural justice and that individual notices
were required to be given to each of the workmen. The
submission was not raised by the respondent at any stage.
Besides, whether the notice by advertisement was sufficient
information for the purposes of compliance with the
requirements of natural justice is again a question of fact
the foundation of which should be pleaded and sufficiently
proved.
The constitutional validity of CSO L-2.12 has not been
questioned by the respondent. The respondent has
contended that the illegal strike cannot amount to
abandonment of service for the purpose of Clause L-2.12 of
the Standing Orders(CSO). But was there a strike at all? Or
was it mass absenteeism unconnected with the terms and
conditions of service?
Besides the submission that a person on illegal strike
does not abandon his job is erroneous. An illegal ’strike’
cannot by definition be "authorised absence". It would be a
contradiction in terms. We may also draw support from
Section 25-B which defines "continuous service" as
"uninterrupted service, including service which may be
interrupted on account of sickness or authorised leave or an
accident or a strike which is not illegal, or a lock-
out or a cessation of work which is not due to any fault on
the part of the workman". The specific exclusion of persons
on illegal strike plainly means that the period a person is on
illegal strike does not amount to service. Different
considerations would no doubt prevail where the strike is
legal. Workers on strike continue to be in service although
they may have ceased work. If the strike is a legal one such
cessation of work or refusal to continue would be absence
authorised by law. Under CSO L-2.12 a presumption is to
be drawn against an employee if such employee is
unauthorisedly absent. Clearly, a person on illegal strike
and a person on legal strike are both ’absent’, but the
absence of the first is unauthorised and the second is not.
CSO L-2.12 raises a presumption against the employee and
it is for the employee to rebut that presumption by adducing
the evidence. It is, therefore, imperative that the factual
basis is determined by the appropriate forum. In any event
the decisions cited by the learned counsel for the respondent
as noted earlier, are factually distinguishable. In Express
Newspapers (supra), there was no condition of service
similar to Certified Standing Order L-2.12. The fact of strike
was also not in dispute. The Management had issued notice
terming the strike as unauthorised abandonment. In other
words, abandonment was pleaded as a fact on the basis of
the strike. The contention of the employer was that there
was no order of termination of service by the employer but a
relinquishment of service by the workmen. The submission
was not accepted because "the respondents by going on
strike clearly indicated that they wanted to continue in their
employment but were only demanding better terms. Such
an attitude, far from indicating abandonment of
employment, emphasised the fact that the employment
continued as far as they were concerned. The management
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could not, by imposing a new term of employment,
unilaterally convert the absence from duty of striking
employees into abandonment of their employment".
The fact of strike was also admitted in G.T. Lad
(supra). Here again there was no condition of service
similar to CSO L-2.12. The Management had issued a notice
calling upon the workmen to report within a specified period
otherwise it would be construed as an abandonment. The
workmen f ailed to report within the aforesaid period. The
Management struck out the names of the workers from the
rolls on the ground that the workmen were not interested in
service and had totally abandoned it. This Court held that
the abandonment was not a question of fact which was
required to be proved. Where the only evidence was
absence because of strike, there was no abandonment. It
was also held, following Express Newspaper (supra) that it
was not open to the company to introduce such changed
terms and conditions of service pending an industrial
dispute.
D.K. Yadav (supra) is an authority for the proposition
that the principle of natural justice would have to be read in
the Standing Orders. That was a case where there was a
standing order similar to CSO L-2.12 except that 8 days’
margin was granted within which the workman was required
to return and satisfactorily explain the reasons for his
absence or inability to return after the expiry of leave. This
view was reiterated in the later decision of this Court in
Lakshmi Precision Screws Ltd. V. Ram Bhagat 2002
(6) SCC 552 where it was held that the element of natural
justice was an in-built requirement of the Standing Orders.
In this case, the appellant- Corporation had issued two
notices calling upon the workmen represented by the
respondent to return to duty. The workmen did not respond
to either of the notices. As we have noted it was not
pleaded that the advertisement did not sufficiently comply
with the principles of natural justice. The notice was issued
giving an opportunity to the respondent to show cause why
the presumption should not be drawn under CSO L-2.12.
The respondent did not show cause. In the circumstances,
the Management drew the presumption in terms of the CSO.
The respondent said that the notice was invalid
because it did not otherwise comply with the CSO L-2.12
because of the shortening of the period of absence. This was
not an issue raised at any stage. In any event, we do not
see how the notice is not in compliance with the Certified
Standing Orders as quoted earlier.
The final submission of the respondent was that the
UPIDA provided for penalty after a departmental enquiry, in
respect of the workman who may have gone on illegal strike
and, therefore, there could be no termination of services on
account of illegal strike. The submission is unacceptable as
we have said there is no proof that the respondents were on
strike at all. Besides, merely because the action is
punishable does not mean that the consequence of an
unauthorised absence is not available under the Certified
Standing Orders if it so specifically provides.
In the circumstances, we have no hesitation in setting
aside the decision of the High Court in dismissing the writ
petition. This order will, however, not preclude the
respondent-Union if it is otherwise so entitled to raise an
industrial dispute under the UPIDA.
The appeals are allowed but without any order as to
costs.
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